Truth In Testimony

Does Congress really care about upholding truth in testimony?

Monday, January 30th, 2017 

Newt GingrichCongressional Pictorial Directory

Newt Gingrich

Newt Gingrich, a former House Speaker and an informal adviser to President Donald J. Trump, isn’t one to mince his words. 

Invited to testify before a House Financial Services Subcommittee on Oversight and Investigations hearing on the Consumer Financial Protection Bureau, the independent federal agency established by the 2010 Dodd-Frank Act and a frequent target of conservatives, Gingrich chose his words deliberately.

“It is dictatorial,” Gingrich said of the bureau in his 2015 testimony. “It is unaccountable. It is practically unrestrained in expanding on its already expansive mandate from Congress. And it is contemptuous of the rights, values and preferences of ordinary Americans.”

Gingrich’s sharp rebuke drew particular interest from committee Democrats, largely because of how he represented himself — or failed to represent himself — to the committee.

Al Green

Congressional Pictorial Directory

Al Green, member of the U.S. House.

Before Gingrich read his statement, ranking subcommittee member Rep. Al Green, D-Texas, voiced concern that Gingrich was identified on the witness list only as the former speaker although he was affiliated with the U.S. Consumer Coalition, a 501(c)(4) nonprofit that’s taken a strong interest in weakening the bureau’s oversight.

Gingrich is a paid adviser to Wise Public Affairs, a PR firm largely behind the staffing and media efforts of the U.S. Consumer Coalition. He made a passing reference to his connection with the coalition, “which I happen to advise,” in his statement.

Green asked for and received unanimous consent for the record to indicate that Gingrich was associated with the U.S. Consumer Coalition. However, no corrected or amended memo or witness list was put forth.

Over the last few decades, the House has taken steps to provide greater transparency regarding potential witness conflicts of interest. The “Truth in Testimony” rule requires that witnesses appearing in a nongovernment capacity must include “a disclosure of any Federal grants or contracts, or contracts or payments originating with a foreign government” within the current or two previous calendar years both for themselves or any group they represent related to the hearing subject.

House rules require committees to disclose these forms electronically within one day of the hearings; Senate committees don’t have a similar rule.

But in the instance of Gingrich’s testimony — and, all too frequently, in a growing number of nongovernment witnesses’ testimonies — the rule does little to reveal outside conflicts that could affect testimony.

Asked to fill out the witness disclosures before the hearing, Gingrich listed “himself,” as a former speaker, under the organization or organizations he was representing. Even with potential conflicts regarding on whose behalf he was testifying, that’s all he legally needed to disclose.

What is the Truth in Testimony rule?

At the start of the 105th Congress, the Truth in Testimony rule was adopted by the House to clarify the motivations behind nongovernment witness testimonies.

John Doolittle

Congressional Pictorial Directory

Congressman Doolittle

This first iteration, which had been championed by Rep. John Doolittle, R-Calif., was designed to better inform committees about the testimony they were hearing. But the “special interests” Doolittle referred to weren’t outside industry groups trying to influence the political process, but rather organizations reliant on the federal government for funding and grants.

Recent changes to the disclosure process require nongovernment witnesses to reveal foreign funding they have received. This came after a 2014 New York Times article found that “at least 62 foreign governments, state-controlled entities or government officials had contributed a minimum of $92 million to a group of 28 major United States-based research organizations in the last four years.”

Many nongovernment witnesses from think tanks and research organizations are invited to testify as “experts,” but the worry is that foreign governments could influence U.S. policy by financing witnesses to testify in favor of their interests.

Rep. Jackie Speier, D-Calif., proposed legislation in response to The New York Times story that would have required witnesses reveal any foreign funding. The proposal didn’t pass during the 113th Congress, but was included in the Rules of the House for the 114th Congress.

Jackie Speier

Congressional Pictorial Directory

House Democrat Jackie Speier 

The rules of the 114th Congress (specifically, clause 2(g)(5) of rule XI) dictate that each House committee collect this information and electronically disclose it within one day, a practice that’s already required to ensure the public has ready access to witness disclosures. Each committee uses its own disclosure form, with subtle changes, and each committee’s rules mirror the House rules when it comes to these disclosures.

But even with efforts to promote public access to these disclosures, as well as recent changes tightening financial information that must be disclosed, committees frequently have difficulty maintaining transparency. All too often, a rule that’s supposed to streamline transparency causes even more headaches as committee staffers add their own approaches to the process.

Struggling to follow the disclosure rules

The 114th Congress’ rules regarding witness disclosures seem relatively straightforward.

“Such statements, with appropriate redactions to protect the privacy or security of the witness, shall be made publicly available in electronic form not later than one day after the witness appears,” the portion regarding public access to witness disclosures states. But many House committees continue to struggle with “appropriate redactions,” what is “publicly available” and what constitutes a witness “appearing in a nongovernmental capacity.”

Certain committees require academic witnesses from public institutions to sign disclosure forms, while other committees consider them to be representatives of a state-run entity — regardless of their testimony’s focus. And committees also vary in their adherence to making these disclosures publicly available, with some committees only uploading the forms to the House’s document repository or forgetting to share them entirely. 

An extensive review by the Investigative Reporting Workshop that included reaching out to more than a dozen nongovernment committee witnesses who testified during the 114th Congress, contacting committee representatives and congressional aides, analyzing shared witness disclosures and reading the rules of each House committee, found issues that undermine the intended transparency of the process.

Perhaps the committee that best exemplifies the confusion is the House Homeland Security Committee.

A number of committees redact sensitive personal information, such as business addresses and contact information, from accessible versions of the disclosure forms.

The Homeland Security Committee is supposed to redact witness signatures to protect the privacy and security of witnesses. But no witness signatures were redacted during hearings May 17, May 24, May 26 and June 15, 2016. Among those testifying were the director of emergency management and homeland security for Ramsey County, Minn.; the president and CEO of a cybersecurity company; and the president of the Tucson Airport Authority, who discussed how to balance airport security with passenger waits.

Claire Woolf, the Homeland Security Committee’s director of strategic and digital communications, blamed a technical error for the failure to redact.

“The glitch has been fixed and all signatures have since been removed and the files replaced on the docs.house.gov site,” Woolf said in a June 23 response to a reporter’s query.

But a review found that while the committee did retroactively redact signatures from the June 15, May 26 and May 24 hearings, it did not redact signatures from the May 17 hearing. While perhaps not a major breach of national security, the incident does show that committees don’t always review the forms once they are posted online.

Woolf said the committee does review witness disclosures for accuracy but often is “reliant upon the witnesses providing clear and accurate information.” The committee makes a proactive effort to get signed disclosures from all required witnesses, she said.

“We ask the nongovernmental witnesses to provide the disclosure before the hearing along with their testimony,” Woolf said. “When the testimony arrives, we follow up with a request to provide the Truth in Testimony form — if it has not been received. If, by the start of the hearing, we have still not received it, we have blank copies of the form for the witnesses to fill out at the hearing.”

There were several instances in which university professors testified before the Homeland Security Committee without signing disclosures, but Woolf said that was because their institutions were a “state-run entity,” meaning they were “not a nongovernment witness” because they were testifying on behalf of the institution.

But professors from public research universities who testified before the Transportation and Infrastructure, Education and the Workforce and Budget committees, along with most of the other House committees reviewed, were asked to sign disclosures and in each instance listed themselves as individual witnesses.

The director of government relations for a large private research university that specifically requests its professors denote themselves as individuals when testifying before a House committee, said it’s “a standard sort of thing” for university witnesses to represent themselves, not the institution for which they teach.

“The forms aren’t really designed for large schools like ours, where there are thousands and thousands of grants,” said the director, who spoke on condition his name not be used. “So, we’ll usually mention something in the testimony itself if we can, if it’s relevant. But the rule is not really in place for places like this, and we’ve spoken with the committees before and they seem to understand.”

Dr. Brian Williams, an assistant extension professor at Mississippi State who testified before the Homeland Security Committee last year, was not asked to sign a disclosure even though his testimony was about agricultural and food production threats rather than the university itself.

But even if Williams were a school representative, he would not have been required to disclose anything about the school’s lobbying efforts on Capitol Hill because of the committee’s interpretation of “nongovernmental capacity.”

Mississippi State, a public institution, spent $200,000 a year from 2007-2015 lobbying the House and Senate. Its first-, second- and third-quarter lobbying reports for 2016 show that the university spent $50,000 each quarter on “research and development” related to appropriations bills, including on the Homeland Security Appropriations Bill.

Yogin Kothari, Washington representative with the Union of Concerned Scientists, a nonprofit science advocacy organization, said the number of nongovernment witnesses — including professors from both public and private institutions — invited to testify before congressional committees is a growing concern because it’s often difficult to identify what outside factors may be influencing their testimony.

“When you have an academic testifying, you don’t always know on whose behalf they’re testifying,” Kothari said. “They can be a researcher at, for example, the University of Colorado, or the University of Texas or the University of Oklahoma. All three institutions get a lot of money from the oil and gas industry. So it’s possible they could be more biased because of that. But that doesn’t have to be disclosed, so you don’t really know about that connection.”

Kothari helped compile the nonprofit’s report “Are Partisanship and Industry Influence Compromising the Mission of the House Committee on Science?” which examined the makeup of witnesses who testified before the House Committee on Science, Space and Technology for 12-years — from the 107th through the 112th Congresses.

The report found that the number of industry witnesses invited to hearings steadily rose, while the number of committee hearings “addressing substantive legislative or science policy issues sank to a low of less than 40 percent in the 112th Congress.” By the 112th Congress, industry witnesses made up 28 percent of all witnesses testifying before the committee — the largest of any subgroup, including government representatives. Academics, who made up a little less than one-quarter of the committee’s witnesses, were on par with the number of government witnesses.

One of the report’s final recommendations would require “witnesses to disclose any conflicts of interest that could influence the testimony they present” to distinguish between “independent scientific advice and views that drive a special-interest agenda.”

The recommendation mirrors the witness disclosure rules, except that it would require that witnesses divulge special-interest ties as well, connections that Kothari said are often hard to pinpoint during hearings.

“I think that’s something really important to keep in mind, and that’s really hard to trace down,” he said of requiring witnesses to divulge special interest conflicts. “That’s one of the reasons why we wanted all witnesses to divulge any conflicts, because there could be perceived conflicts of interest for academics as well that we just don’t know and that we’re not able to categorize.”

One sticking point across the committees has been the language making the disclosures “publicly available.”

The House Financial Services Committee, which Gingrich testified before, uploads disclosures to the committee website as well as to the House document repository, docs.house.gov. The committee also makes the disclosures, along with corresponding witness testimony, available to members of the general public who attend hearings.

But not all House committees make these forms accessible through committee websites, and at least five, including the Homeland Security Committee, put these forms online only at docs.house.gov. All the House committees upload the prepared witness statements to their websites and generally send the information — along with other hearing materials and disclosures — to the online repository.

The House Transportation and Infrastructure Committee uploads disclosures and other hearing materials only to docs.house.gov. But five hearings held during the 114th Congress (including four that had nongovernment witnesses) never had their materials, including the disclosure, uploaded to the repository.

The House Committee on the Budget did not upload any disclosures to either its committee website or to docs.house.gov during the entire 113th or 114th Congresses.

When contacted about this violation of the Truth in Testimony rule, committee spokesman Ryan Murphy said individual witness disclosures could be requested through the committee. Those disclosures were provided when requested by a reporter, but it was only after a representative’s office reached out to the committee staff that the committee began, June 30, to upload witness disclosures from the 114th Congress to both the committee website and docs.house.gov. While all of the disclosures from the last two years have been uploaded, the disclosures from the 113th Congress are not publicly accessible.

The committee did not comment on its efforts to backfill the disclosures, but a congressional legislative director, who spoke on condition a name not be used, said the committee became aware of its oversight after being contacted by the reporter.

“I have to give you credit because having spoken with them, they recognized what they were doing was wrong,” the legislative director said. “They have the documents and they’re actually putting them all up now on the website. So I think what we’re seeing is there may have been some confusion as far as the requirements for each committee to post them.”

The Budget Committee made a habit of uploading witness disclosures to its committee website, either as individual documents or attached to the end of witness statements, through the end of the 112th Congress.

Breakdown between transparency and witness testimony

The current disclosure process, which does little to reveal conflicts of interest except for witnesses receiving foreign grants or federal funding, has a net negative effect on both nongovernment witnesses and the validity of testimonies for the general public.

Committee hearings, much as the Union of Concerned Scientists report found, often rely more heavily on nongovernment witnesses to provide input into policy decisions. These witnesses are invited by representatives and their staffs to testify, with the majority party (in this case, the Republicans) getting to select the larger number of witnesses.

With hearings almost nothing more than choreographed political events, representatives from both parties generally invite witnesses whose views most align with theirs. In essence, witnesses who work with the federal government are being subjected to a higher level of scrutiny over their conflicts than outside industry or organizations that have no direct ties to foreign governments or federal funds, but are nonetheless trying to influence policy. But the lack of full transparency can lead to greater disagreements and suspicion among witnesses, some who might view their fellow witnesses as biased.

Dr. Deborah Cory-Slechta, acting chair of the Department of Environmental Medicine at the University of Rochester School of Medicine, testified before the Veterans’ Affairs Subcommittee on Oversight and Investigations on Feb. 23, 2016, in a hearing called “Persian Gulf War: An Assessment of Health Outcomes on the 25th Anniversary.”

Cory-Slechta said she was struck by what she described as “all of the shadow conflicts of interest” during the meeting.

“The Institute of Medicine committee report that I chaired and that I was there to testify about reached conclusions and recommendations that were rejected and challenged by other researchers who were testifying, as well as some [veterans service organizations] representatives that were testifying,” she said. “These researchers basically derive all of their research funding from the programs threatened by the [Institute of Medicine] conclusions, and some of the activities and funding of the VSOs also comes from these sources.

“Yet there were no discussions of the conflicts of interest during the meeting.”

She said the contrast was especially noticeable because the Institute of Medicine committees mandate that all members go through “serious group discussions of any apparent conflicts of interest ahead of any deliberations.”

Dr. Roberta White of Boston University, a nongovernment witness at the same hearing, was critical of the Institute of Medicine report.

Both White and Cory-Slechta said they were asked to sign disclosures before testifying, but neither’s disclosure was uploaded to the docs.house.gov site. The Veterans’ Affairs committee does not post disclosures on its website. When contacted, the committee located Cory-Slechta’s form, but had trouble finding White’s.

It wasn’t until July 7 that the committee located White’s disclosure, nearly five months after the hearing. It was dated July 8, 2016, one day after it was finally posted to docs.house.gov.

The form showed that White had received, along with another researcher, a subgrant for $2,679,808 from the National Institute of Environmental Health Sciences to study “prenatal exposure to polyflouroalkyl chemicals and child growth development” from August 2012 to May 2017. She also disclosed that she received $330,000 for serving as science director of the Research Advisory Committee on Gulf War Illnesses through the Department of Veterans Affairs.

White told the committee about funding she had received from the federal government over the past several years. But if the committee can’t keep track of forms that actually disclose federal funding, then accurately storing and disclosing the forms is a necessity.

The Future of the Truth in Testimony Rule

The most noticeable shortcoming of the Truth in Testimony rule is the discrepancy between House committee witnesses who are asked to sign the forms and witnesses before Senate committees who are not asked to sign any disclosure forms. While the House process may not be effective enough to root out all conflicts, especially from special-interest groups, it does provide a much-needed step toward greater transparency.

An effort to pass a Senate version of the Truth in Testimony rule was pushed by Sen. Chuck Grassley, R-Iowa, in 2010, but died before being brought to any vote or committee hearing.

That legislation, S. Res. 665, or the “Witness Sunshine Resolution,” was proposed in direct response to Dr. Jonathan Gruber’s testimony before the Senate Committee on Finance in 2009 in support of President Barack Obama’s health care law. Gruber testified as a health care economist and professor at the Massachusetts Institute of Technology, but had received roughly $400,000 from the Department of Health and Human Services to evaluate and promote the health care law. 

In a floor statement introducing his resolution, Grassley said that requiring witness disclosures would have allowed the committee to give Gruber’s testimony “its proper weight.”

“Our failure as an institution to ask for transparency in testimony is a problem that has a simple solution, a solution that most other institutions that rely on the work of academic experts have already implemented,” Grassley said. “The solution is to simply ask witnesses who come before the Senate to disclose any potential conflicts of interest up front.”

Grassley’s proposed resolution, which went no further than being introduced, would have been even more rigorous than the House’s Truth in Testimony rule by requiring witnesses to disclose any outside conflicts of interest.

The resolution called for amending the Standing Rules of the Senate to require “a disclosure form identifying any arrangement, affiliation, relationship, or substantial financial interest the witness has with any organization, company, private, or government entity directly related to the subject of the hearing as well as the nature of the relationship disclosed.”

Grassley’s resolution is the only effort that’s been proposed to extend the witness disclosure rule to the U.S. Senate. Since first introducing the resolution in 2010, Grassley has not introduced any related legislation and does not appear to be moving forward with any similar efforts. 

I’m not sure Sen. Grassley will pick up the thread again,” Jill Gerber, a spokeswoman for Grassley, said in an email. "I think he has his hands full with the Judiciary chairmanship these days.”

There are currently no ongoing efforts to extend the witness disclosure rule to the Senate, and the Rules of the 115th Congress do not include any clarifying language that would better streamline the disclosure process for House committees moving forward.

Until the Senate disclosure rules are changed, the lopsidedness of the regulation paves the way for witnesses to push potentially biased agendas with less transparency. 

Updating witness disclosures to account for foreign funding was a positive step toward revealing potential conflicts of interest. But without accountability requirements for special interest or industry witnesses to identify biased motives, coupled with an already wavering commitment by some committees to follow existing practices, the Truth in Testimony rule will continue to fail to live up to its lofty goal of transparency.